Assumption of Initially Just Distribution

The act-omission distinction assumes that society is initially just, since an omission would be acceptable on an even playing field, but not so when systematic injustices require active corrections. Thus omissions can’t be justified in cases where we have duties to beneficence.

Onecommon argument in support of the doctrine is that in letting a patient die a doctor [one] does not do anything to cause the patient's death – It is the disease process which causes the patient's death – it is nature taking its course(6). There are at least two problems with this line of argument. The first concerns the nature of action. While it may be arguable that if a person does not move he is not acting in the sense of being active (and even that claim is dubious), a person who intentionally takes no action maynonethelessbe acting, in the morally important sense of human agency. The action he takes in that sense of action, and under one description, is intentionally to allow his patient to die. The fact that he did so by avoiding certain physical actions is not in itself morally exonerating – there are countless situations in which it isclearly morally reprehensible to take no action with the intention of allowing another person todie, particularly so if that person is one's patient. Similarly the argument that one is allowing nature to take its course is of no moral weight, for there are countless circumstances in which allowing nature to take its course is morally reprehensible (allowing the diabetic to die of coma in the casualty department is allowing nature to take its course - but, of course, the doctor's job in these and many other circumstances is precisely to stop nature taking its course).

Line-drawing Problem

The act-omission distinction requires a line between killing and letting die, but it is impossible to draw this line because there is a gradient of different cases rather than two distinct categories. For example, it is unclear where the case of refusing to brake for pedestrians falls. Killing should instead be thought of not as its own type of action, but as a relation to an outcome, which means the act-omission distinction falls.

In our view, any effort to distinguish between acts and omissions goes wrong by overlooking the distinctive features of government as a moral agent. If correct, this point has broad implications for criminal and civil law. Whatever the general status of the act/omission distinction as a matter of moral philosophy, the distinction is least impressive when applied to government, because the most plausible underlying considerations do not apply to official actors. The most fundamental point is that, unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything or refusing to act.

There are two ways in which the act-omission doctrine, which implies that it may be permissible to let people die or be killed when it is [but] wrong to kill them, gives rise to a paradox.First, it may be that when you let a victim be killed, you let yourself kill this victim.On the assumption that,if it would be wrong of youto act in a certain fashion, it would be wrongof you [to] let yourself act in this fashion, this yields the paradox that it is both permissible and impermissible to let yourself act in this fashion. Second, you may let yourself kill somebody by letting an action you have already initiated cause death, e. g.,by not lending ahelping hand to somebody you havepushed. This, too,yields the paradox that it is both permissible and impermissible to let yourself kill if you are in a situation in which killing is impermissible but letting be killed permissible.